Thursday, December 31, 2009

The Massachusetts Supreme Judicial Court today issued its ruling in a key open meeting law case, District Attorney for the Northern District v. School Committee of Wayland. The SJC ruled that the School Committee violated the law when it met in a closed session to discuss the performance evaluation of Wayland's superintendent of schools and when it exchanged private e-mails regarding the evaluation in advance of the meeting.

It affirms that discussions of a government employee's "professional competence" must be conducted in public.

It affirms that an exchange of e-mails among the members of a public body can constitute "deliberation" and therefore violate the open meeting law.

It clarifies a seeming conflict between the open meeting law and the public records law. While the discussion of an employee's performance evaluation must take place in an open meeting, once the evaluation is reduced to a written evaluation document, that document need not be made public.

The School Committee had argued that the evaluation was a prelude to contract negotiations with the superintendent and therefore was exempt as a strategy session in preparation for negotiations. But the SJC said that there was no evidence that the committee discussed strategy.

This is an important ruling for affirming the right of the public to know how their local officials are performing in their jobs. The public has a right to know when a local official is performing well or performing poorly.

Tuesday, December 29, 2009

The Massachusetts Secretary of State's office has ruled that the public has a right to know the names, addresses and amounts owed of the top 10 parking scofflaws in the town of Watertown. In a Dec. 24 letter published by the Wicked Local Watertown Blog, state Supervisor of Public Records Alan N. Cote ordered the town to release the information, which the Watertown TAB had requested last May.

The town had refused to comply with the newspaper's public records request, citing both the federal Drivers Privacy Protection Act and the fact that the records are maintained for the town by an outside contractor. Cote ruled that the federal law does not apply to the records in question and that the town's use of an outside contractor does not relieve it of its obligation to comply with the public records law.

Tuesday, December 08, 2009

The Massachusetts Supreme Judicial Court announced a new judicial conduct rule today that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by an ad hoc study committee it appointed in 2008, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics.

The changes to Section 3B(9) of the Code of Judicial Conduct, which take effect Jan. 1, 2010, also allow judges to make public comment about issues relating to the judge's conduct, as opposed to substantive legal rulings, and to discuss pending appellate cases in educational settings.

Official commentary to the revised rule says that "restrictions on judicial speech are essential to the maintenance of the independence, impartiality, and integrity of the judiciary." A new appendix to the rule provides guidance for judges on when and under what circumstances they might issue explanatory memoranda.

"We encourage judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing," the appendix says. When a judge decides at some point after issuing a ruling to write an explanatory memorandum, the appendix says, the judge should carefully consider four factors:

The importance of avoiding or alleviating the parties' or the public's misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision.

The amount of time that has elapsed since the order was issued and the extent to which the judge's reasons for the decision remain fresh in his or her mind.

The risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order.

The danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence and impartiality of judges.

In no case should a judge issue an explanatory memorandum "solely to respond to public criticism of the decision." Nor should a judge issue such a memorandum "if the court no longer has the authority to alter or amend the underlying order."

Following are the texts of the new and old rules:

New Section 3B(9) (effective Jan. 1, 2010):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending proceeding in any Massachusetts court, and shall require similar abstention on the part of court personnel.

(a) This section does not apply to any oral or written statement made by a judge in the course of his or her adjudicative duties.

(b) A judge is permitted to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(c) A judge is permitted to speak, write, or teach about cases and issues pending in appellate courts when such comments are made in legal education programs and materials, scholarly presentations and related materials, or learned treatises, academic journals and bar publications. This educational exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(d) A judge is permitted to make public comment concerning his or her conduct provided that such comments do not reasonably call into question the judge's impartiality and do not address the merits of any pending or impending judicial decision.

(e) This section does not apply to proceedings in which a judge is a litigant in a personal capacity.

Former Section 3B(9):

(9) Except as otherwise provided in this section, a judge shall abstain from public comment about a pending or impending Massachusetts proceeding in any court, and shall require similar abstention on the part of court personnel.

(a) A judge is permitted to make public statements in the course of his or her official duties or to explain for public information the procedures of the court, general legal principles, or what may be learned from the public record in a case.

(b) This Section does not prohibit judges from discussing, in legal education programs and materials, cases and issues pending in appellate courts. This education exemption does not apply, however, to comments or discussions that might interfere with a fair hearing of the case.

(c) This Section does not apply to proceedings in which the judge is a litigant in a personal capacity.

Wednesday, November 18, 2009

The Supreme Court's 1963 decision, Gideon v. Wainwright, guaranteed that criminal defendants unable to afford their own lawyer would have one appointed at the public's expense. Should there be a corollary right in certain types of civil cases that involve basic human needs, such as when a person faces eviction from a home or the loss of parental rights? California recently made history by enacting a pilot program to appoint lawyers in certain civil cases and other pilot programs are underway elsewhere in the country.

Wednesday, November 11, 2009

The Standard-Times has asked the Plymouth County district attorney to investigate the Board of Selectmen's heavy use of executive sessions in the hiring of a new town administrator.

In response, Assistant District Attorney Mary Lee on Wednesday sent a letter to the town's legal counsel, asking for explanations and for minutes of all meetings involved with the search, both public and private.

The Massachusetts Bar Foundation is celebrating its 45th anniversary this year. I am honored to serve as a trustee of this important charitable organization, which is dedicated to ensuring equal access to justice and to enhancing the administration of justice and understanding of the law.

I urge companies, law firms, lawyers and other members of the legal community to support this 45th anniversary. Here are four ways you can do that:

Become an anniversary sponsor. Anniversary activities will culminate with a celebration dinner and fundraiser on Jan. 14, 2010, at the Colonnade Hotel, Boston. Sponsors will be featured at the dinner and in publicity and other materials throughout the year. CLICK HERE to download a PDF of the MBF's sponsorship opportunity guide.

Donate items to the online silent auction. As part of the anniversary initiatives, the MBF will host an online silent auction of fun and unique items. This is an ideal opportunity for vendors to donate a product. CLICK HERE to donate an item for the silent auction.

Purchase an ad in the dinner program. The sponsorship guide includes information on program ads.

Attend the dinner. Tickets are not yet on sale, but save the date of Jan. 14. I will post a notice when ticket sales open.

I believe deeply in the importance of this organization and the charitable work it supports throughout Massachusetts. I hope you will join me in adding your support.

Thursday, November 05, 2009

Does the Fourth Amendment's protection against unreasonable searches and seizures extend to e-mail and data stored in "the cloud"? Surprisingly, the question remains unsettled in the courts. On this week's legal-affairs podcast Lawyer2Lawyer, we discuss the extent to which e-mail and other online data are protected in both the criminal and civil contexts. Joining us are two experts on the topic:

Wednesday, October 28, 2009

An important case interpreting the Massachusetts open meeting law comes up for argument before the Supreme Judicial Court on Monday. The case, District Attorney v. Wayland School Committee, presents the question of whether a school committee violated the law when it met in closed session to discuss the performance evaluation of the school superintendent.

(Note: I filed an amicus brief in this case on behalf of the Massachusetts Newspaper Publishers Association.)

The open meeting law requires that all committee meetings be open to the public except those that fall within express exceptions. This case involves the exception that allows a committee to meet in private "to discuss the reputation, character, physical condition or mental health rather than the professional competence of an individual." That italicized phrase is understood to mean that professional competence cannot be the subject of a closed meeting.

Despite that, the trial judge in this case relied on a separate exception to rule that the closed-door meeting was lawful. That exception allows a private meeting to "conduct strategy sessions in preparation for negotiations with nonunion personnel, to conduct collective bargaining sessions or contract negotiations with nonunion personnel."

The trial judge reasoned that because the superintendent was compensated pursuant to a written contract, and given that the amount of compensation was to be based, in part, on the evaluation, then the evaluation, itself, was to be considered part of the contract negotiation.

The problem with this reasoning is that it renders meaningless the professional competence exclusion noted above. Professional competence is a nearly universal measure on which employers base employment decisions. If every discussion of professional competence is to be considered a prelude to an employment-related decision, then it could always be discussed in private, under the trial judge's reasoning.

Interest in the case drew amicus briefs not just from the MNPA, but also from the Mass. Municipal Association, the Mass. Association of School Superintendents, and the Mass. Association of School Committees. You can read the briefs at the SJC's site and watch Monday's oral arguments via webcam.

A case that could decide whether the Massachusetts anti-SLAPP statute applies to journalists comes up for argument Monday before the Supreme Judicial Court. The case, Fustolo v. Hollander, involves a libel lawsuit filed by real estate developer Steven C. Fustolo against Fredda Hollander, a reporter for a community newspaper in Boston's North End and a long-time community activist.

Hollander sought to have the lawsuit dismissed under the anti-SLAPP statute, which is designed to protect against the use of litigation to silence a person's "exercise of its right of petition." The right of petition refers to an individual's First Amendment right to address the government with regard to issues of public concern.

A Superior Court judge denied the motion. The judge concluded that Hollander had written the news stories at issue in the lawsuit not "on her own behalf as a citizen" but "in the role of a reporter paid and employed by the publisher of a newspaper." The ruling is at odds with another Superior Court case, Joyce v. Slager, which allowed a newspaper's motion to dismiss a libel case under the anti-SLAPP law.

Those interested in the case can watch the webcast of the arguments before the SJC. You can read the briefs filed by the parties here.

Monday, October 19, 2009

Can a town deny a public-records request on the grounds that the requester still owes money for an earlier request?

No, according to a ruling made by Alan Cote, the Massachusetts supervisor of public records. As reported by the Brockton Enterprise, Cote has decided that Rockland Town Administrator Allan Chiocca was wrong to deny a resident's public records request for the reason that he still owed the town payment for past requests.

"You have failed to provide sufficient justification for withholding these records," Cote told the town administrator.

Sunday, October 18, 2009

Some items in the news this week regarding the Massachusetts open meeting law:

A Cape Cod Times editorial calls for the state legislature to put teeth in the open meeting and public records laws. "Pick up the phone and call your state senator and representative. Let them know that you demand good government that is answerable directly to the people and that you support real sanctions against those public officials who deliberately break the law."

The Worcester Telegram & Gazette files a complaint alleging that the Charlton Board of Selectman violated the open meeting law in its performance evaluation of the town administrator.

The Brockton Enterprise reports that the Rockland town counsel denies there is any validity to a selectman's complaint that a screening committee violated the open meeting law when it recommended a final candidate at its first public meeting.

Friday, October 16, 2009

This week on the legal-affairs podcast Lawyer2Lawyer, we try to sort fact from fiction regarding the Federal Trade Commission's new guidelines on product endorsements and reviews by bloggers. The FTC wants bloggers to disclose free products or payments they receive from companies for reviewing their products. How far do the guidelines reach, what sorts of disclaimers do they require, and how will the FTC enforce them?

To help us sort through these questions, we are joined by two guests with expertise in this area: Eric P. Robinson, staff attorney at the Media Law Resource Center, a nonprofit information clearinghouse that monitors and promotes First Amendment rights in libel, privacy and related fields; and Barry J. Reingold, head of the marketing and advertising practice for the law firm Perkins Coie.

Monday, October 12, 2009

Remember Noonan v. Staples? That was the 1st Circuit decision I described as the most dangerous libel decision in decades. In it, the court upended the bedrock principle of libel law that truth is an absolute defense. It said that even a true statement can be subject to a libel lawsuit if it was said with actual malice.

At issue in the case was an e-mail sent by a Staples executive to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The e-mail said -- truthfully -- that Noonan was terminated after a company investigation determined that he had violated Staples' travel and expense policies.

The 1st Circuit remanded the case to the district court for trial. Reportedly, the trial is now complete and a jury last week rendered its verdict. The jury found no malice on the part of Staples and returned a verdict in the company's favor.

Wednesday, October 07, 2009

The board of selectmen in Charlton, Mass., should be commended for conducting its evaluation of the town administrator in an open meeting. It did not have a lot of choice, as the Telegram & Gazette reports. Complaints filed by the newspaper against the town last year resulted in a ruling by the Worcester County district attorney that the selectmen violated the open meeting law in 2007 and 2008 when it conducted the administrator's evaluations behind closed doors.

One member of the board, however, was not comfortable with the idea of speaking in public about her unsatisfactory evaluation of the administrator. Selectman Kathleen Walker got clearance from the town counsel to meet privately with the administrator to discuss her evaluation.

Tuesday, October 06, 2009

Massachusetts state Sen. Stanley C. Rosenberg of Northampton said today he would file a bill to help save the jobs of newspaper carriers. His statement followed the announcement earlier in the day that Northampton's newspaper, the Daily Hampshire Gazette, and its sibling paper, the Greenfield Recorder, would end their long-standing custom of having boys and girls deliver the newspaper to neighborhood homes.

Rosenberg's announcement said that he began working on the bill after learning that state employment officials had begun classifying newspaper carriers as employees, instead of as independent contractors, thereby requiring newspaper companies to pay their unemployment insurance fees.

Rosenberg’s bill, which has yet to be filed, would more clearly define the role of news carriers within a newspaper company and exempt the companies from state unemployment fees, his announcement said.

"Newspapers are absolutely critical to the advancement of our democracy, and news boys and girls are a part of Americana that I, personally, can’t stand the thought of losing. How many of us first learned the value of work delivering newspapers? These jobs are important for our local young people, and adults alike, and I’m not willing to see them go to big corporations without a fight."

Legislation to address this issue is badly needed. A 2004 change to Massachusetts law eliminated the traditional "right to control" test used to determine whether someone is an employee or an independent contractor. It was replaced with a new standard which required, among other things, that an independent contractor be providing a service that is "outside the usual course of the business of the employer." This makes virtually any freelancer an employee under the law if the freelancer's work has any relation to the business.

Today's announcement from the Gazette said it would shift home newspaper delivery to a national distribution company effective Oct. 26.

"Massachusetts, in a couple of areas, is taking a hard look at independent contractors," Gazette Publisher Jim Foudy said in the article. "They've been making some statements, taking some actions. We believe they're going to say these people need to be employees."

"This is a business decision. We just realized we needed to move on this before we end up finding ourselves with enormous additional costs," Foudy said.

Friday, September 11, 2009

A federal prosecutor's decision to let prominent political blogger Andrew Sullivan off the hook for a marijuana bust was condemned yesterday by a federal magistrate judge in Boston as unjustified favoritism. But finding that he was without power to override the prosecutor's decision, the magistrate judge dismissed the charges nonetheless. I have details in a post today at Legal Blog Watch.

Syracuse University's S.I. Newhouse School of Public Communications will award four Carnegie/Newhouse School Legal Reporting Fellowships to support freelance journalists reporting on legal issues.

The $3,000 awards include paid student research assistants for each reporting fellow, which will give Newhouse students practical experience covering law and the courts. The fellowships are open to freelance journalists working in any medium with the intent of helping them pay out-of-pocket expenses.

"These days, freelancers covering legal issues need as much support as they can get," said Roy Gutterman, director of the Newhouse School’s Carnegie Legal Reporting Program, and an assistant professor of communications law and journalism. "Offering the public thorough, comprehensive coverage of legal issues is an important function of the press and we want to help those efforts."

Fellowship applications are available online at http://newhouse.syr.edu/legal. Application deadline is October 5. A panel of faculty members from the Newhouse School will choose the winners. Fellowship money and student research assistants will be available for the 2009-10 academic year.

Newhouse students will be invited to compete for the four research assistant positions, which carry a stipend. "Our students are the lifeblood of our university," Gutterman said. "Marrying up our students with members of the legal reporting press, provides a valuable outside-the-classroom experience."

The Carnegie/Newhouse School Legal Reporting Fellowships are part of the Newhouse School’s Carnegie Legal Reporting Program. Supported by a grant from the Carnegie Corporation of New York and its Carnegie Journalism Initiative, the program provides a number of services designed to teach students about the workings of the American legal system and the role of the news media in covering the law. Additional funding for this year’s fellowships is provided by IJPM.

Wednesday, September 09, 2009

The Supreme Judicial Court today heard oral arguments in Howell v. The Enterprise Publishing Co., a defamation case arising out of a series of newspaper articles regarding a town's termination of an employee. The case is particularly important because it could define the scope of the fair report privilege in Massachusetts. You can view a webcast of today's oral arguments at this page. That page also has links to the parties' briefs.

The SJC heard the case on further appellate review from a decision of the Appeals Court. The case involves allegations of defamation against a newspaper that accurately reported on findings made by officials in the town of Abington after conducting two investigatory hearings. The officials twice concluded that plaintiff Howell had used town computers to access images of a "pornographic nature." Even though the newspaper reported these findings accurately, the Appeals Court held that if a jury disagrees that the images were pornographic, the newspaper could be liable for defamation. This is a misapplication of the fair report privilege, which protects news outlets against claims for libel when they report information provided in official government documents or statements.

Thursday, September 03, 2009

In all my years of tracking open meeting cases in Massachusetts, this one is clearly in the running for the prize for most outrageous. Reporting in The Salem News, writer Steve Landwehr describes the selectmen in the town of Hamilton as operating "a near 'secret government,' with selectmen privately discussing a wide range of personnel and policy issues that are not exempt from the requirements of the Open Meeting Law."

Exhibit No. 1: A series of secret meetings stretching over three months to discuss what the public should be told about two flat-screen TVs in the town's new public safety building. A rumor wase flying around town that the TVs were evidence seized by police in a criminal investigation. Even though the rumor was true, and even though the selectmen were warned that they should not discuss the issue in private, they continued to do so. It would be 18 months before the public would learn the truth -- and only then from an independent investigator.

In another example, selectmen repeatedly met privately to discuss various allegations of misconduct involving a police officer, without ever informing the officer. The open meeting law explicitly requires that discussions of an employee's "professional competence" be conducted in an open meeting. An employee's "reputation" and "character" may be discussed in a closed session, but only after notifying the employee and allowing the employee to attend the executive session and be represented by counsel.

The Salem News report describes other secret meetings in Hamilton. All tolled, it shows what appears to have been a flagrant disregard of the law.

Monday, August 17, 2009

The U.S. Patent and Trademark Office is understaffed and overwhelmed. Could the answer to its problems lie in crowdsourcing the patent-review process? Could crowdsourcing result in better patents?

This week on the legal-affairs podcast Lawyer2Lawyer, we look at the Peer-to-Patent system, an innovative pilot project run jointly by the USPTO and the Center for Patent Innovations, a research and development arm of New York Law School's Institute for Information Law & Property. The project just completed its second year of operation and its future is now under review. It uses crowdsourcing and the power of the Internet at large to help vet applications for business-methods and software patents.

Joining us to discuss this experiment in crowdsourcing of patent review are two guests:

Prof. Mark Webbink, executive director of the Center for Patent Innovations and the former senior vice president and general counsel at Red Hat, the premier Linux and open source vendor.

Stephanie Scruggs, an intellectual-property partner in the Washington, D.C., office of Hanify & King, where she focuses on patent litigation, patent prosecution, and product clearance and patent validity opinions.

Thursday, July 30, 2009

Contained within Chapter 28 of the Acts of 2009, signed into law by Gov. Patrick July 1, is a major overhaul of the Massachusetts open meeting law. Because the full bill is massive and addresses a range of matters relating to ethics and lobbying, I have extracted the portions relating to open meetings for ease of reference.

Section 18: As used in this section and sections 19 to 25, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Deliberation", an oral or written communication through any medium, including electronic mail, between or among a quorum of a public body on any public business within its jurisdiction; provided, however, that “deliberation” shall not include the distribution of a meeting agenda, scheduling information or distribution of other procedural meeting or the distribution of reports or documents that may be discussed at a meeting, provided that no opinion of a member is expressed.

“Emergency”, a sudden, generally unexpected occurrence or set of circumstances demanding immediate action.

“Executive session”, any part of a meeting of a public body closed to the public for deliberation of certain matters.

“Intentional violation”, an act or omission by a public body or a member thereof, in knowing by violating the open meeting law.

“Meeting”, a deliberation by a public body with respect to any matter within the body’s jurisdiction; provided, however, “meeting” shall not include:

(a) an on-site inspection of a project or program, so long as the members do not deliberate;

(b) attendance by a quorum of a public body at a public or private gathering, including a conference or training program or a media, social or other event, so long as the members do not deliberate;

(c) attendance by a quorum of a public body at a meeting of another public body that has complied with the notice requirements of the open meeting law, so long as the visiting members communicate only by open participation in the meeting on those matters under discussion by the host body and do not deliberate;

(d) a meeting of a quasi­-judicial board or commission held for the sole purpose of making a decision required in an adjudicatory proceeding brought before it; or

(e) a session of a town meeting convened under section 10 of chapter 39 which would include the attendance by a quorum of a public body at any such session.

“Minutes”, the written report of a meeting created by a public body required by subsection (a) of section 23 and section 5A of chapter 66.

“Open meeting law”, sections 18 to 25, inclusive.

“Post notice”, to display conspicuously the written announcement of a meeting either in hard copy or electronic format.

“Preliminary screening”, the initial stage of screening applicants conducted by a committee or subcommittee of a public body solely for the purpose of providing to the public body a list of those applicants qualified for further consideration or interview.

“Public body”, a multiple-member board, commission, committee or subcommittee within the executive or legislative branch or within any county, district, city, region or town, however created, elected, appointed or otherwise constituted, established to serve a public purpose; provided, however, that the governing board of a local housing, redevelopment or other similar authority shall be deemed a local public body; provided, further, that the governing board or body of any other authority established by the general court to serve a public purpose in the commonwealth or any part thereof shall be deemed a state public body; provided, further, that “public body” shall not include the general court or the committees or recess commissions thereof, bodies of the judicial branch or bodies appointed by a constitutional officer solely for the purpose of advising a constitutional officer and shall not include the board of bank incorporation or the policyholders protective board; and provided further, that a subcommittee shall include any multiple-member body created to advise or make recommendations to a public body.

“Quorum”, a simple majority of the members of the public body, unless otherwise provided in a general or special law, executive order or other authorizing provision.

Section 19. (a) There shall be in the department of the attorney general a division of open government under the direction of a director of open government. The attorney general shall designate an assistant attorney general as the director of the open government division. The director may appoint and remove, subject to the approval of the attorney general, such expert, clerical and other assistants as the work of the division may require. The division shall perform the duties imposed upon the attorney general by the open meeting law, which may include participating, appearing and intervening in any administrative and judicial proceedings pertaining to the enforcement of the open meeting law. For the purpose of such participation, appearance, intervention and training authorized by this chapter the attorney general may expend such funds as may be appropriated therefor.

(b) The attorney general shall create and distribute educational materials and provide training to public bodies in order to foster awareness and compliance with the open meeting law. Open meeting law training may include, but shall not be limited to, instruction in:

(1) the general background of the legal requirements for the open meeting law;

(3) the role of the attorney general in enforcing the open meeting law; and

(4) penalties and other consequences for failure to comply with this chapter.

(c) There shall be an open meeting law advisory commission. The commission shall consist of 5 members, 2 of whom shall be the chairmen of the joint committee on state administration and regulatory oversight; 1 of whom shall be the president of the Massachusetts Municipal Association or his designee; 1 of whom shall be the president of the Massachusetts Newspaper Publishers Association or his designee; and 1 of whom shall be the attorney general or his designee.

The commission shall review issues relative to the open meeting law and shall submit to the attorney general recommendations for changes to the regulations, trainings, and educational initiatives relative to the open meeting law as it deems necessary and appropriate.

(d) The attorney general shall, not later than January 31, file annually with the commission a report providing information on the enforcement of the open meeting law during the preceding calendar year. The report shall include, but not be limited to:

(1) the number of open meeting law complaints received by the attorney general;

(2) the number of hearings convened as the result of open meeting law complaints by the attorney general;

(3) a summary of the determinations of violations made by the attorney general;

(4) a summary of the orders issued as the result of the determination of an open meeting law violation by the attorney general;

(5) an accounting of the fines obtained by the attorney general as the result of open meeting law enforcement actions;

(6) the number of actions filed in superior court seeking relief from an order of the attorney general; and

(7) any additional information relevant to the administration and enforcement of the open meeting law that the attorney general deems appropriate.

Section 20. (a) Except as provided in section 21, all meetings of a public body shall be open to the public.

(b) Except in an emergency, in addition to any notice otherwise required by law, a public body shall post notice of every meeting at least 48 hours prior to such meeting, excluding Saturdays, Sundays and legal holidays. In an emergency, a public body shall post notice as soon as reasonably possible prior to such meeting. Notice shall be printed in a legible, easily understandable format and shall contain the date, time and place of such meeting and a listing of topics that the chair reasonably anticipates will be discussed at the meeting.

(c) For meetings of a local public body, notice shall be filed with the municipal clerk and posted in a manner conspicuously visible to the public at all hours in or on the municipal building in which the clerk’s office is located.

For meetings of a regional or district public body, notice shall be filed and posted in each city or town within the region or district in the manner prescribed for local public bodies. For meetings of a regional school district, the secretary of the regional school district committee shall be considered to be its clerk and shall file notice with the clerk of each city or town within such district and shall post the notice in the manner prescribed for local public bodies. For meetings of a county public body, notice shall be filed in the office of the county commissioners and a copy of the notice shall be publicly posted in a manner conspicuously visible to the public at all hours in such place or places as the county commissioners shall designate for the purpose.

For meetings of a state public body, notice shall be filed with the attorney general by posting on a website in accordance with procedures established for this purpose.

The attorney general shall have the authority to prescribe or approve alternative methods of notice where the attorney general determines such alternative will afford more effective notice to the public.

(d) The attorney general may by regulation or letter ruling, authorize remote participation by members of a public body not present at the meeting location; provided, however, that the absent members and all persons present at the meeting location are clearly audible to each other; and provided, further, that a quorum of the body, including the chair, are present at the meeting location. Such authorized members may vote and shall not be deemed absent for the purposes of section 23D of chapter 39.

(e) After notifying the chair of the public body, any person may make a video or audio recording of an open session of a meeting of a public body, or may transmit the meeting through any medium, subject to reasonable requirements of the chair as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting. At the beginning of the meeting the chair shall inform other attendees of any such recordings.

(f) No person shall address a meeting of a public body without permission of the chair, and all persons shall, at the request of the chair, be silent. No person shall disrupt the proceedings of a meeting of a public body. If, after clear warning from the chair, a person continues to disrupt the proceedings, the chair may order the person to withdraw from the meeting and if the person does not withdraw, the chair may authorize a constable or other officer to remove the person from the meeting.

(g) Within 2 weeks of qualification for office, all persons serving on a public body shall certify, on a form prescribed by the attorney general, the receipt of a copy of the open meeting law, regulations promulgated pursuant to section 25 and a copy of the educational materials prepared by the attorney general explaining the open meeting law and its application pursuant to section 19. Unless otherwise directed or approved by the attorney general, the appointing authority, city or town clerk or the executive director or other appropriate administrator of a state or regional body, or their designees, shall obtain such certification from each person upon entering service and shall retain it subject to the applicable records retention schedule where the body maintains its official records. The certification shall be evidence that the member of a public body has read and understands the requirements of the open meeting law and the consequences of violating it.

Section 21. (a) A public body may meet in executive session only for the following purposes:

(1) To discuss the reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual. The individual to be discussed in such executive session shall be notified in writing by the public body at least 48 hours prior to the proposed executive session; provided, however, that notification may be waived upon written agreement of the parties. A public body shall hold an open session if the individual involved requests that the session be open. If an executive session is held, such individual shall have the following rights:

i. to be present at such executive session during deliberations which involve that individual;

ii. to have counsel or a representative of his own choosing present and attending for the purpose of advising the individual and not for the purpose of active participation in the executive session;

iii. to speak on his own behalf; and

iv. to cause an independent record to be created of said executive session by audio-recording or transcription, at the individual’s expense.

The rights of an individual set forth in this paragraph are in addition to the rights that he may have from any other source, including, but not limited to, rights under any laws or collective bargaining agreements and the exercise or non-exercise of the individual rights under this section shall not be construed as a waiver of any rights of the individual.

2. To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel;

3. To discuss strategy with respect to collective bargaining or litigation if an open meeting may have a detrimental effect on the bargaining or litigating position of the public body and the chair so declares;

4. To discuss the deployment of security personnel or devices, or strategies with respect thereto;

5. To investigate charges of criminal misconduct or to consider the filing of criminal complaints;

6. To consider the purchase, exchange, lease or value of real property if the chair declares that an open meeting may have a detrimental effect on the negotiating position of the public body;

7. To comply with, or act under the authority of, any general or special law or federal grant-in-aid requirements;

8. To consider or interview applicants for employment or appointment by a preliminary screening committee if the chair declares that an open meeting will have a detrimental effect in obtaining qualified applicants; provided, however, that this clause shall not apply to any meeting, including meetings of a preliminary screening committee, to consider and interview applicants who have passed a prior preliminary screening;

9. To meet or confer with a mediator, as defined in section 23C of chapter 233, with respect to any litigation or decision on any public business within its jurisdiction involving another party, group or entity, provided that:

(i) any decision to participate in mediation shall be made in an open session and the parties, issues involved and purpose of the mediation shall be disclosed; and

(ii) no action shall be taken by any public body with respect to those issues which are the subject of the mediation without deliberation and approval for such action at an open session; or

10. to discuss trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities pursuant to section 1F of chapter 164, in the course of activities conducted as a municipal aggregator under section 134 of said chapter 164 or in the course of activities conducted by a cooperative consisting of governmental entities organized pursuant to section 136 of said chapter 164, when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy.

(b) A public body may meet in closed session for 1 or more of the purposes enumerated in subsection (a) provided that:

1. the body has first convened in an open session pursuant to section 21;

2. a majority of members of the body have voted to go into executive session and the vote of each member is recorded by roll call and entered into the minutes;

3. before the executive session, the chair shall state the purpose for the executive session, stating all subjects that may be revealed without compromising the purpose for which the executive session was called;

4. the chair shall publicly announce whether the open session will reconvene at the conclusion of the executive session; and

Section 22. (a) A public body shall create and maintain accurate minutes of all meetings, including executive sessions, setting forth the date, time and place, the members present or absent, a summary of the discussions on each subject, a list of documents and other exhibits used at the meeting, the decisions made and the actions taken at each meeting, including the record of all votes.

(b) No vote taken at an open session shall be by secret ballot. Any vote taken at an executive session shall be recorded by roll call and entered into the minutes.

(c) Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within 10 days.

(d) Documents and other exhibits, such as photographs, recordings or maps, used by the body at an open or executive session shall, along with the minutes, be part of the official record of the session.

(e) The minutes of any open session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, shall be public records in their entirety and not exempt from disclosure pursuant to any of the exemptions under clause Twenty-sixth of section 7 of chapter 4. Notwithstanding this paragraph, the following materials shall be exempt from disclosure to the public as personnel information: (1) materials used in a performance evaluation of an individual bearing on his professional competence, provided they were not created by the members of the body for the purposes of the evaluation; and (2) materials used in deliberations about employment or appointment of individuals, including applications and supporting materials; provided, however, that any resume submitted by an applicant shall not be exempt.

(f) The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21.

When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

For purposes of this subsection, if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure.

(g)(1) The public body, or its chair or designee, shall, at reasonable intervals, review the minutes of executive sessions to determine if the provisions of this subsection warrant continued non-disclosure. Such determination shall be announced at the body’s next meeting and such announcement shall be included in the minutes of that meeting.

(2) Upon request by any person to inspect or copy the minutes of an executive session or any portion thereof, the body shall respond to the request within 10 days following receipt and shall release any such minutes not covered by an exemption under subsection (f); provided, however, that if the body has not performed a review pursuant to paragraph (1), the public body shall perform the review and release the non-exempt minutes, or any portion thereof, not later than the body’s next meeting or 30 days, whichever first occurs. A public body shall not assess a fee for the time spent in its review.

Section 23. (a) Subject to appropriation, the attorney general shall interpret and enforce the open meeting law.

(b) At least 30 days prior to the filing of a complaint with the attorney general, the complainant shall file a written complaint with the public body, setting forth the circumstances which constitute the alleged violation and giving the body an opportunity to remedy the alleged violation; provided, however, that such complaint shall be filed within 30 days of the date of the alleged violation. The public body shall, within 14 business days of receipt of a complaint, send a copy of the complaint to the attorney general and notify the attorney general of any remedial action taken. Any remedial action taken by the public body in response to a complaint under this subsection shall not be admissible as evidence against the public body that a violation occurred in any later administrative or judicial proceeding relating to such alleged violation. The attorney general may authorize an extension of time to the public body for the purpose of taking remedial action upon the written request of the public body and a showing of good cause to grant the extension.

(c) Upon the receipt of a complaint by any person, the attorney general shall determine, in a timely manner, whether there has been a violation of the open meeting law. The attorney general may, and before imposing any civil penalty on a public body shall, hold a hearing on any such complaint. Following a determination that a violation has occurred, the attorney general shall determine whether the public body, 1 or more of the members, or both, are responsible and whether the violation was intentional or unintentional. Upon the finding of a violation, the attorney general may issue an order to:

(1) compel immediate and future compliance with the open meeting law;

(2) compel attendance at a training session authorized by the attorney general;

(3) nullify in whole or in part any action taken at the meeting;

(4) impose a civil penalty upon the public body of not more than $1,000 for each intentional violation;

(5) reinstate an employee without loss of compensation, seniority, tenure or other benefits;

(6) compel that minutes, records or other materials be made public; or

(7) prescribe other appropriate action.

(d) A public body or any member of a body aggrieved by any order issued pursuant to this section may, notwithstanding any general or special law to the contrary, obtain judicial review of the order only through an action in superior court seeking relief in the nature of certiorari; provided, however, that notwithstanding section 4 of chapter 249, any such action shall be commenced in superior court within 21 days of receipt of the order. Any order issued under this section shall be stayed pending judicial review; provided, however, that if the order nullifies an action of the public body, the body shall not implement such action pending judicial review.

(e) If any public body or member thereof shall fail to comply with the requirements set forth in any order issued by the attorney general, or shall fail to pay any civil penalty imposed within 21 days of the date of issuance of such order or within 30 days following the decision of the superior court if judicial review of such order has been timely sought, the attorney general may file an action to compel compliance. Such action shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets. If such body or member has not timely sought judicial review of the order, such order shall not be open to review in an action to compel compliance.

(f) As an alternative to the procedure in subsection (b), the attorney general or 3 or more registered voters may initiate a civil action to enforce the open meeting law.

Any action under this subsection shall be filed in Suffolk superior court with respect to state public bodies and, with respect to all other public bodies, in the superior court in any county in which the public body acts or meets.

In any action filed pursuant to this subsection, in addition to all other remedies available to the superior court, in law or in equity, the court shall have all of the remedies set forth in subsection (b).

In any action filed under this subsection, the order of notice on the complaint shall be returnable not later than 10 days after the filing and the complaint shall be heard and determined on the return day or on such day as the court shall fix, having regard to the speediest possible determination of the cause consistent with the rights of the parties; provided, however, that orders may be issued at any time on or after the filing of the complaint without notice when such order is necessary to fulfill the purposes of the open meeting law. In the hearing of any action under this subsection, the burden shall be on the respondent to show by a preponderance of the evidence that the action complained of in such complaint was in accordance with and authorized by the open meeting law; provided, however, that no civil penalty may be imposed on an individual absent proof that the action complained of violated the open meeting law.

(g) It shall be a defense to the imposition of a penalty that the public body, after full disclosure, acted in good faith compliance with the advice of the public body’s legal counsel.

(h) Payment of civil penalties under this section paid to or received by the attorney general shall be paid into the general fund of the commonwealth.

Section 24. (a) Whenever the attorney general has reasonable cause to believe that a person, including any public body and any other state, regional, county, municipal or other governmental official or entity, has violated the open meeting law, the attorney general may conduct an investigation to ascertain whether in fact such person has violated the open meeting law. Upon notification of an investigation, any person, public body or any other state, regional, county, municipal or other governmental official or entity who is the subject of an investigation, shall make all information necessary to conduct such investigation available to the attorney general. In the event that the person, public body or any other state, regional, county, municipal or other governmental official or entity being investigated does not voluntarily provide relevant information to the attorney general within 30 days of receiving notice of the investigation, the attorney general may: (1) take testimony under oath concerning such alleged violation of the open meeting law; (2) examine or cause to be examined any documentary material of whatever nature relevant to such alleged violation of the open meeting law; and (3) require attendance during such examination of documentary material of any person having knowledge of the documentary material and take testimony under oath or acknowledgment in respect of any such documentary material. Such testimony and examination shall take place in the county where such person resides or has a place of business or, if the parties consent or such person is a nonresident or has no place of business within the commonwealth, in Suffolk county.

(b) Notice of the time, place and cause of such taking of testimony, examination or attendance shall be given by the attorney general at least 10 days prior to the date of such taking of testimony or examination.

(c) Service of any such notice may be made by: (1) delivering a duly-executed copy to the person to be served or to a partner or to any officer or agent authorized by appointment or by law to receive service of process on behalf of such person; (2) delivering a duly-executed copy to the principal place of business in the commonwealth of the person to be served; or (3) mailing by registered or certified mail a duly-executed copy addressed to the person to be served at the principal place of business in the commonwealth or, if said person has no place of business in the commonwealth, to his principal office or place of business.

(d) Each such notice shall: (1) state the time and place for the taking of testimony or the examination and the name and address of each person to be examined, if known and, if the name is not known, a general description sufficient to identify him or the particular class or group to which he belongs; (2) state the statute and section thereof, the alleged violation of which is under investigation and the general subject matter of the investigation; (3) describe the class or classes of documentary material to be produced thereunder with reasonable specificity, so as fairly to indicate the material demanded; (4) prescribe a return date within which the documentary material is to be produced; and (5) identify the members of the attorney general’s staff to whom such documentary material is to be made available for inspection and copying.

(e) No such notice shall contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the commonwealth or require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of the commonwealth.

(f) Any documentary material or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of the commonwealth for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general, unless with the consent of the person producing the same; provided, however, that such material or information may be disclosed by the attorney general in court pleadings or other papers filed in court.

(g) At any time prior to the date specified in the notice, or within 21 days after the notice has been served, whichever period is shorter, the court may, upon motion for good cause shown, extend such reporting date or modify or set aside such demand or grant a protective order in accordance with the standards set forth in Rule 26(c) of the Massachusetts Rules of Civil Procedure. The motion may be filed in the superior court of the county in which the person served resides or has his usual place of business or in Suffolk county. This section shall not be applicable to any criminal proceeding nor shall information obtained under the authority of this section be admissible in evidence in any criminal prosecution for substantially identical transactions.

Section 25. (a) The attorney general shall have the authority to promulgate rules and regulations to carry out enforcement of the open meeting law.

(b) The attorney general shall have the authority to interpret the open meeting law and to issue written letter rulings or advisory opinions according to rules established under this section.

How's that old saying go about the devil quoting the Bible for his own ends? The same, it seems, can be said about public officials and the open meeting law, as two items in the news today illustrate.

First is a story from the Worcester Telegram about the Dudley Board of Selectmen's decision to reprimand the town's fire chief for supposedly violating the open meeting law. Did he violate the law by holding a secret meeting? No, the selectmen claim he violated the law by being open about what happened at a meeting. Seems the selectmen insisted in meeting in private to discuss the chief's contract, even though the chief wanted the meeting to be public. After the meeting, he committed the unpardonable sin of revealing some of the selectmen's concerns about his performance. For this, he has been reprimanded.

There may be reasons why the chief should not have spoken in public about what transpired at the meeting. But let's not blame the open meeting law. The law is designed to promote openness, not prevent it. In no way, shape or form did the chief's public comments after a meeting held to discuss his contract constitute an open meeting violation.

Today's other misreading of the open meeting law comes via Wicked Local Arlington, which reports that the School Committee has voted to hold a private meeting with the interim superintendent to decide whether to interview her for the permanent position. When asked what possible justification the School Committee might have for such a private meeting, the chairman said "there's a gray area" that would allow this. Apparently, that's a new exception to the open meeting law, because it sure does not fall under any exception I've read in the law.

Tuesday, July 28, 2009

I constantly hear the refrain that government officials never intentionally violate the open meeting law. When they do violate the law, these people say, it is only because of an innocent mistake. I urge any who believes that to read this report by The Salem News about the Essex Regional Retirement Board. The article describes multiple, blatant violations, including locking the door to its meeting room to keep out a news reporter who had every legal right to be there. Innocent mistake? I don't think so.

The kicker is near the end, where Cynthia M. Roy, a spokeswoman for Gov. Patrick, says the law will save time and money. Most newspapers can get these notices in the next day, so what kind of time is saved? As for money, her claim that this will save state government "tens of thousands of dollars" is ludicrous.

I have no objection to the state posting public notices on its own Web site. My objection is doing that to the exclusion of newspapers. Members of the public simply are not going to check a construction-industry web site on a routine basis. These shallow allegations of time and cost savings are subterfuge for shielding this process from the public eye.

Sunday, June 28, 2009

As I wrote here Friday, the ethics bill passed this week by the Massachusetts legislature had the ironic effect of weakening the open meeting law. Two opinion pieces published over the weekend make this point in no uncertain terms:

Friday, June 26, 2009

The Massachusetts legislature yesterday unanimously approved a major ethics bill and Gov. Deval Patrick last night indicated he would sign it. Few members of the public realize that contained within this bill is a major overhaul of the state's open meeting law. Ironically, for a bill that was intended to shore up ethics and accountability in government, the open meeting portions actually make the open meeting law harder to enforce in one material way.

Before I explain, let me first say that several aspects of this bill represent a step forward. Most significantly, it will consolidate enforcement of the open meeting law within the Attorney General's Office, creating a new Division of Open Government. Under prior law, enforcement of local cases was handled by the county district attorney and of state cases by the AG. This resulted in a lack of uniformity in interpretation and application of the law.

Under this new law, the AG will have the authority to investigate and hold hearings on complaints alleging open meeting violations. If the AG finds a violation, she will have the authority to issue various remedial orders. If the public body fails to comply with the AG's order, the AG can file an action in Superior Court to compel compliance. The law preserves the right of private citizens to bring their own actions for enforcement, independent of the AG's office.

Other commendable features of this law include:

Express clarification that a meeting can take place through "an oral or written communication through any medium, including electronic mail."

Express clarification that "preliminary screening" for purposes of filling a job vacancy ends once the public body is provided with "a list of those applicants qualified for further consideration," thereby requiring all subsequent interviews to be conducted in public.

Creation of a five-member open meeting law advisory commission, composed of the House and Senate chairs of the Joint Committee on State Administration and Regulatory Oversight, a designee of the Massachusetts Newspaper Publishers Association, a designee of the Massachusetts Municipal Association, and a designee of the AG.

Stronger mandates for education of public officials about the open meeting law.

Annual reporting by the AG on open meeting law enforcement.

So what's not to like? The problem with this bill is that the legislature failed to address the most significant shortcoming of the law, which is its lack of teeth. In fact, on this issue, the bill actually makes the law even weaker.

The MNPA -- for which I serve as executive director -- has pushed for some six years now to add two components to the open meeting law -- penalties on public officials who violate the law and attorneys' fees awards for private citizens who bring lawsuits to enforce the law. As the law now stands, a public official who violates the law faces zero consequences. The body that violates the law can be subject to a fine, but not the individual members. This means that government officials can brazenly violate the law and let the taxpayers pay any penalty that results.

Forty-two states authorize some form of penalty - either civil or criminal or both -- for violations of the open meeting law. In 38 states, the civil fine or criminal penalty is imposed directly against the government official who violates the law. In 21 states, it is actually considered a crime for a public official to violate the law.

This new bill creates no new penalties and weakens the one penalty that the law formerly had. The former law authorized a fine of up to $1,000 against the board or commission that violated the law (but not its members). The new bill changes that to require proof that the board's violation was "intentional." This is an almost impossible hurdle to overcome. Humans have intent, boards do not. How does one prove the intent of a board? To make matters worse, most open meeting violations occur in secret. How is evidence of intent to be found in secret, closed-door proceedings?

The bill also leaves private citizens with no right to collect costs and attorneys' fees for actions to enforce the law. Forty-two states authorize plaintiffs in these cases to recover their costs and 40 authorize them to recover attorneys' fees.

Ironically, even as the full legislature was voting to pass this bill yesterday, the Joint Committee on State Administration and Regulatory Oversight was holding a public hearing on open meeting and public records reform. Passage of this bill yesterday need not be the end of the discussion about open meeting reform. The Joint Committee can recommend further modifications and fine-tuning of the bill. At a minimum, the committee should recommend elimination of the word "intentional" from the bill. Those familiar with the history understand that this word came into an earlier version of this bill as a typo and should have quickly come out. Perhaps the committee will go even further and recommend that, once and for all, the open meeting law be given some actual teeth.

"It's a calling. If you enjoy fighting with bullies, if you enjoy fighting with hypocrites, if you enjoy finding people who have inspiring stories to tell. ... It's taking the moving picture of life and putting it into little segments that people can read. "

Thursday, June 04, 2009

This week on the legal-affairs podcast Lawyer2Lawyer, we consider the class-action lawsuit filed by college football and basketball players against EA Sports and the NCAA. The lawsuit claims that electronic games unlawfully appropriate the likenesses of these student athletes.

Wednesday, March 18, 2009

The 1st U.S. Circuit Court of Appeals today turned down a petition asking the full circuit to rehear en banc the controversial decision Noonan v. Staples, in which a three-judge panel ruled that truth is not an absolute defense to libel. My earlier post about that ruling is here.

Following is the text of today's order. A note on the order said that Circuit Chief Judge Sandra Lynch recused herself from the case and did not participate in the vote.

Staples's petition for rehearing en banc, construed also as a petition for panel rehearing, challenges the constitutionality of the Massachusetts General Laws ch. 231, § 92, as construed in the panel's rehearing opinion. Since its initial brief, Staples has argued under the premise that the term "actual malice" in § 92 means "malevolent intent." Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the rehearing opinion found that it need not consider the issue. See Rehearing Opinion at p. 17, n.7.

Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R. App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. See, e.g., Rosado-Quiñones v. Toledo, 528 F.3d 1, 6 (1st Cir. 2008) (deeming waived the "question of law about whether there is added First Amendment protection for public employees' filing of lawsuits against their employers on matters in which the public has no interest"); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n.7 (1st Cir. 2008); see also Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee, 456 U.S. 694, 703 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual [due process] right, it can, like other such rights, be waived.").

Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern. The Massachusetts Supreme Judicial Court ("SJC") case relied upon by Staples did not hold that truth is an absolute defense in private concern cases, but rather that a private figure may recover for a negligently made defamatory falsehood in a case of public concern. Stone v. Essex County Newspapers, Inc., 330 N.E.2d 161, 164 (Mass. 1975). And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." Phila. Newspapers v. Hepps, 475 U.S. 767, 775 (1986); see also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761 (1985) ("In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damages -- even absent a showing of 'actual malice.'"). In fact, were the issue as clear-cut as Staples suggests, the SJC would not likely have limited its own invalidation of § 92 to matters of public concern. Shaari v. Harvard Student Agencies, 691 N.E.2d 925, 929 (Mass. 1998) ("To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment." (emphasis added)). Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position.

Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification. Though Staples suggests that § 92 may violate the Massachusetts Constitution, it presents no argumentation whatsoever relating specifically to that contention. Further, Staples should not be allowed to escape the consequences of waiver through certification.

The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. The alternative request for certification to the SJC is also denied.

Sunday, March 08, 2009

"Just because you can do it, doesn't mean you should do it." That notable quote came from Nicholas V. Hammond, a selectman in the town of Auburn, Mass., regarding a closed-door session that should have been open. As reported by Bill Fortier in the Worcester Telegram & Gazette, the town's selectman and its school committee went into a joint executive session, ostensibly to discuss strategy involving collective bargaining. That is one of the reasons for an executive session allowed under the open meeting law. But, said Hammond of the lengthy meeting, "everything but that was discussed." He declined to tell the reporter what was talked about.

Sunday, March 01, 2009

Maryland's highest appellate court has issued a significant ruling underscoring the First Amendment's protection of anonymous comments posted online. The Maryland Court of Appeals decision, Independent Newspapers v. Brodie, is only the second by a state supreme court to confront the disclosure of those whose anonymous comments are alleged to be defamatory. The court established a strict, five-step process that courts in Maryland must follow before requiring disclosure of someone's identity:

When a trial court is confronted with a defamation action in which anonymous speakers or pseudonyms are involved, it should, (1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board; (2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application; (3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech; (4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and (5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s identity, prior to ordering disclosure.

The case involved anonymous comments critical of the cleanliness of a Dunkin' Donuts owned by Maryland developer Zebulon Brodie. Brodie sued the online newspaper that hosted the comments and three John Doe defendants. The trial judge dismissed the newspaper from the lawsuit under the Communications Decency Act, but nevertheless ordered the newspaper to provide identifying information about the three John Doe defendants and two others not named in the complaint.

It is interesting to note that the Court of Appeals could have disposed of this case without addressing this important issue. In reviewing the lower-court proceedings, it found that the three John Does identified in the complaint had nothing to do with the allegedly defamatory comments concerning cleanliness of the Dunkin' Donuts. The two who did make those comments were never named in the complaint. In light of this, Brodie had not established a valid cause of action for defamation against any defendant and the judge had no grounds to order the disclosures. But the Court of Appeals went on to decide the broader issue anyway, explaining, "We did not take this issue just to sort out the record but to give guidance to trial courts addressing similar matters."

Friday, February 27, 2009

The Essex County District Attorney's Office has determined that the Boxford, Mass., Board of Health violated the open meeting law when it deliberated policy issues through a series of e-mails sent between March and June 2008. Both Wicked Local and The Salem News have reports this week of the DA's ruling, which it issued Nov. 13. The e-mails discussed the formation of a horse-stables regulation committee and what its duties would be.

Wednesday, February 18, 2009

Friday's 1st Circuit decision that truth is not always a defense to libel -- which I posted about here and here -- continues to draw reactions from other bloggers:

At Nieman Journalism Lab, Martin Langeveld writes: "The case threatens to muzzle both news and entertainment media, and could be particularly dangerous to independent bloggers and small startup news organizations — neither of which is likely to have the legal resources a traditional established news organization has to battle libel suits."

Los Angeles entertainment lawyer Gordon P. Firemark blogs: "If allowed to stand, this case could make anybody a potential defendant. It will certainly have a chilling effect on important forms of speech, such as documentary films and many forms of investigative journalism."

Tuesday, February 17, 2009

The 1st Circuit's libel ruling that I wrote about here yesterday has drawn reaction from a number of commentators. Dan Kennedy wrote about it for his weekly column in the Guardian. (In fact, it was Dan's request for comment that led me to write my post.) Dan also wrote about it on his blog, Media Nation, and at the blog of the New England First Amendment Center. Dan's Media Nation post includes a lengthy analysis by Rob Bertsche, one of the top media lawyers in New England. Other comments about the case come from Bill Ketter, vice president of news for Community Newspaper Holdings Inc., and Sam Bayard, posting at the Citizen Media Law Project. The ABA Journal also has a short piece about it.

Just to highlight two of the many thoughtful comments these others have made, let me start with this from Dan Kennedy's Guardian piece:

If Torruella's dangerous opinion were to lead federal judges' finding state laws similar to the 1902 statute in Massachusetts, the result could turn back the clock on freedom of speech and freedom of the press.

If the truth no longer sets us free, then the first amendment will have shrunk beyond recognition. The media will lose, of course. But so will the public they ostensibly serve.

And then this from Rob Bertsche, via Kennedy's blog:

With this decision, the First Amendment has been replaced by the maxim, "If you don't have anything nice to say, don't say it."Consider the irony: The Supreme Court has said that there is constitutional protection for false statements on matters of public concern, but now the First Circuit says there is no constitutional protection for true statements on matters of private concern. What's worse, the court offers no guidance about how to distinguish what is of "public concern" from what is of "private concern."

Monday, February 16, 2009

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week. In Noonan v. Staples, it ruled that even a true statement can be subject to a libel lawsuit if it was said with actual malice. In so deciding, the three-judge panel did an about face, reversing its own earlier decision in the same case. You need not be superstitious to appreciate the import of this Friday the 13th ruling. It is the most dangerous libel decision in decades. The decision puts a crack in the bedrock that threatens to undermine free speech.

To reach this outcome, the 1st U.S. Circuit Court of Appeals panel dusted off a 1902 statute that the highest state court in Massachusetts long ago ruled unconstitutional in a related context. The statute, G. L. c. 231, Section 92, says that truth is a defense to libel "unless actual malice is proved." In a 1998 case, Shaari v. Harvard Student Agencies, the Supreme Judicial Court ruled that statute unconstitutional as applied to matters of public concern. Citing a line of U.S. Supreme Court opinions leading back to the seminal 1964 case, New York Times v. Sullivan, the SJC said, "To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment."

Remarkably, the 1st Circuit sidestepped Shaari with barely a nod to its significance. In a 34-page opinion written by Circuit Judge Juan R. Torruella, the court gave Shaari only a footnote. It dismissed Staples' argument that Shaari applied here on a procedural formality. "This argument is not developed now and was not raised in the initial briefing. Accordingly, we do not consider it at this time." It ignored Shaari even though the SJC suggested in dictum that the ruling should apply equally to private cases. "Although the Supreme Court has instructed that private figure plaintiffs may recover 'on a less demanding showing than that required' in cases of public figure plaintiffs, ... the falsity of the defendant's defamatory statement regarding matters of public concern remains a prerequisite to recovery," the SJC said.

At issue in this case was an e-mail a Staples executive sent to some 1,500 employees about the termination of Alan Noonan, a Staples sales director. The company terminated Noonan for cause after investigators concluded that he had deliberately falsified expense reports. The next day, Executive Vice President Jay Baitler sent the e-mail. "It is with sincere regret that I must inform you of the termination of Alan Noonan's employment with Staples," he wrote. "A thorough investigation determined that Alan was not in compliance with our [travel and expense] policies."

As the 1st Circuit itself acknowledged, "everything said in the e-mail was true." But it said Noonan could still have a claim under the 1902 statute if he could show that the e-mail was sent "with actual malice." The Supreme Court's decision in New York Times v. Sullivan defined actual malice as requiring knowledge that a statement was false or reckless disregard for its truth or falsity. The first time the 1st Circuit decided this case, it applied that standard to dismiss Noonan's appeal. This time, it leapfrogged back in time over 40 years of Supreme Court precedent to apply a 1903 SJC ruling that defined actual malice as "malicious intention," which Torruella recasts as "ill will."

"From this evidence, a jury could permissibly infer that Baitler singled out Noonan in order to humiliate him," Torruella wrote. He cites three pieces of evidence he considers key. First, Baitler had never before referred to a fired employee by name in a communication to employees. Second, he sent no memo about another employee who was fired for embezzling money through fraudulent expense reports. Third, he sent the e-mail to some 1,500 employees, many of whom did not travel and had no reason to be reminded of the policy. "The presence of these three pieces of evidence support inferences upon which a jury could base a verdict for Noonan," Torruella said.

This is far from the end of this case. The 1st Circuit's decision sends it back to the lower court for a trial to determine how the case should be decided. Most likely, Staples will ask the full panel of 1st Circuit judges to review this case en banc. It could even make its way to the Supreme Court. For the time being, however, be afraid -- be very, very afraid -- of this precedent. If ill will is all that is needed to turn a truthful statement into libel, then everyone is a potential defendant.